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Rules and Regulations Federal Register

19093 

Vol. 72, No. 73 

Tuesday, April 17, 2007 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Part 550 

RIN 3206–AK74 

Pay Administration (General) 

AGENCY: Office of Personnel 

Management. 

ACTION: Final rule. 

SUMMARY: The Office of Personnel 

Management is issuing final regulations 

on compensatory time off for time spent 

in a travel status away from the official 

duty station when such time is not 

otherwise compensable. 

DATES: The regulations are effective May 

17, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Vicki Draper by telephone at (202) 606– 

2858, by fax at (202) 606–0824, or by email at pay-performancepolicy@opm.gov. 

SUPPLEMENTARY INFORMATION: On 

January 27, 2005, the Office of 

Personnel Management (OPM) 

published interim regulations (70 FR 

3855) in 5 CFR part 550, subpart N, to 

implement section 203 of the Federal 

Workforce Flexibility Act of 2004 (Pub. 

L. 108–411, October 30, 2004), hereafter 

referred to as ‘‘the Act.’’ Section 203 of 

the Act amended 5 U.S.C. chapter 55, 

subchapter V, by adding a new section 

5550b, which established a new form of 

compensatory time off for time spent by 

an employee in a travel status away 

from the employee’s official duty station 

when such time is not otherwise 

compensable. The 60-day comment 

period for the interim regulations ended 

on March 28, 2005. During the comment 

period, OPM received comments from 

16 Federal agencies, 7 unions, and 81 

individuals, all of which are addressed 

in this final rule. In addition, in March 

2006, we issued additional guidance, 

including questions and answers, to 

address many of the comments we 

received on the interim regulations. We 

encourage agencies and employees to 

review these materials on OPM’s Web 

site at http://www.opm.gov/oca/pay/ 

HTML/compensatory_time.asp. We will 

continue to provide additional guidance 

on the administration of compensatory 

time off for travel, as necessary. 

Effective Date 

Two individuals suggested the new 

provision be applied retroactively to 

cover previous travel times that were 

not compensable under title 5, United 

States Code. Section 203(c) of the Act 

provided that the new form of 

compensatory time off for travel would 

take effect on the earlier of (1) the 

effective date of the implementing 

regulations or (2) the 90th day after the 

date of the law’s enactment (January 28, 

2005). The interim regulations became 

effective on January 28, 2005, and apply 

prospectively from that date. 

Covered Employees 

Several commenters requested 

clarification on the categories of 

employees covered by the new 

compensatory time off provision, while 

others objected to omissions of certain 

categories of employees in OPM’s 

regulations at 5 CFR 550.1402. Because 

the law authorizing the new 

compensatory time off provision is in 5 

U.S.C. chapter 55, subchapter V, the 

new provision applies to an ‘‘employee’’ 

as defined in 5 U.S.C. 5541(2), who is 

employed in an ‘‘Executive agency,’’ as 

defined in 5 U.S.C. 105, without regard 

to whether the employee is exempt from 

or covered by the overtime pay 

provisions of the Fair Labor Standards 

Act of 1938 (FLSA), as amended. OPM 

cannot broaden coverage to include 

additional employee groups. The 

definition includes employees in seniorlevel (SL) and scientific or professional 

(ST) positions, but not members of the 

Senior Executive Service, Senior 

Foreign Service, Foreign Service 

officers, or prevailing rate (wage grade) 

employees. 

The compensatory time off for travel 

provision also does not apply to 

employees of Non-Appropriated Fund 

Instrumentalities (NAFI). NAFI 

employees are not covered by the laws 

administered by OPM, with a few 

narrow exceptions, which are listed in 

5 U.S.C. 2105(c). Although title 38 

employees are not specifically excluded 

from the definition of ‘‘employee’’ in 5 

U.S.C. 5541(2), the title 38 employment 

system is administered by the 

Department of Veterans Affairs (VA) 

under its own legal authority and any 

determinations as to coverage under 5 

U.S.C. 5541(2) would be made by VA. 

A commenter noted that the Department 

of Justice (DOJ) has determined the 

compensatory time off for travel statute 

does not apply to attorneys at DOJ. 

Congress recently enacted legislation 

(Pub. L. 109–425, December 20, 2006) 

which provides that attorneys at DOJ 

shall be eligible for compensatory time 

off for travel under section 5550b of title 

5, United States Code. 

Employees who are on intermittent 

work schedules are not eligible to earn 

and use compensatory time off for travel 

because they do not have a scheduled 

tour of duty for leave purposes. Under 

5 CFR 550.1406(b), compensatory time 

off for travel may be used by an 

employee when the employee is granted 

time off from his or her scheduled tour 

of duty established for leave purposes. 

Finally, a part-time employee may be 

entitled to compensatory time off for 

travel if the travel time does not qualify 

as compensable hours of work under 5 

U.S.C. 5542(b)(2)(B) and 5 CFR 

550.112(g)(2) and meets the other 

requirements in 5 CFR part 550, subpart 

N. 

Definitions 

Many commenters recommended the 

addition or revision of certain 

definitions in § 550.1403. One agency 

recommended adding a definition of 

accrued compensatory time off, which 

is used in § 550.1406. We agree and 

have added a definition to § 550.1403. 

In addition, we have added a definition 

of authorized agency official to mean 

the head of the agency or an official who 

is authorized to act for the head of the 

agency in the matter concerned. 

Two individuals recommended that 

OPM define time the employee would 

have spent in normal home-to-work or 

work-to-home commuting. We do not 

believe this is necessary, since agencies 

may use procedures already in place for 

deducting commuting time from travel 

hours as required by 5 CFR 550.112(j)(2) 

and 5 CFR 551.422(b). One agency 

recommended that OPM establish a 

minimum commute time for an 

employee whose residence is 

considered his or her official duty 


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19094 Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Rules and Regulations 

station. We are not adopting this 

recommendation because an employee 

whose residence is his or her official 

duty station does not spend time 

commuting to work. 

Two individuals recommended 

revising the definition of official duty 

station to be consistent with the term 

official station as defined in the Federal 

Travel Regulation (41 CFR 300–3.1) 

issued by the General Services 

Administration. Official duty station in 

§ 550.1403 means the geographic area 

surrounding an employee’s regular work 

site that is the same as the area 

designated by the employing agency for 

the purpose of determining whether 

travel time is compensable for the 

purpose of determining overtime pay, 

consistent with the regulations in 5 CFR 

550.112(j) and 551.422(d). The term 

official station prescribes the geographic 

limits of an employee’s permanent work 

station for the purpose of determining 

the employee’s entitlement to 

subsistence allowances (per diem). We 

are not adopting the recommendation 

because the geographic area an agency 

designates for the purpose of 

determining whether an employee is 

entitled to overtime pay for a period of 

travel may be different than the 

geographic area covered by official 

station as defined in 41 CFR 300–3.1. 

One agency recommended that the 

definition of travel status be stated 

exactly as it is in § 550.1404(b), and one 

individual recommended clarifying the 

definition. We do not believe it is 

necessary to revise the definition 

because it refers directly to 

§ 550.1404(b). 

Compensable Travel Time 

Several commenters recommended 

clarifying whether travel under certain 

circumstances is compensable. Under 

§ 550.1403, compensable refers to 

periods of time that are creditable as 

hours of work for the purpose of 

determining a specific pay entitlement, 

even when that work time may not 

actually generate additional 

compensation because of applicable pay 

limitations. One agency and an 

individual recommended clarifying 

whether an employee who receives 

administratively uncontrollable 

overtime (AUO) pay under 5 U.S.C. 

5545(c)(2) is eligible to receive 

compensatory time off for travel. An 

employee receiving AUO pay may be 

entitled to compensation for travel time 

during (1) nonovertime hours, (2) AUO 

hours (i.e., irregular or occasional 

overtime hours), or (3) regularly 

scheduled overtime hours—if the travel 

hours meet one of the conditions in 5 

CFR 550.112(g) or 5 CFR 551.422, as 

applicable. If an AUO employee has 

other qualifying travel time that does 

not meet the applicable conditions to be 

treated as compensable hours of work, 

such travel time may be used to earn 

compensatory time off under 5 CFR part 

550, subpart N. 

One agency recommended clarifying 

an employee is not eligible for 

compensatory time off for travel when 

the time spent traveling has been 

compensated under the FLSA. Overtime 

hours compensated under the FLSA 

clearly meet the definition of 

compensable in § 550.1403. Therefore, 

we believe no clarification in the 

regulations is necessary. One union 

recommended clarifying that a class of 

accommodations, such as business 

class, does not influence whether the 

travel time is compensable. We agree. 

Allowing an employee to upgrade his or 

her travel to business class does not 

eliminate his or her eligibility to earn 

compensatory time off for travel. 

One individual and one agency 

recommended clarifying whether an 

employee is eligible to earn 

compensatory time off for any portion of 

a period of travel under 5 CFR 

550.112(g)(2) which may not be 

compensable because of the biweekly 

cap on premium pay. One union and 

one agency recommended that such an 

employee should be eligible. We 

disagree. Even though an employee may 

not be paid overtime pay for all of his 

or her travel hours because of the 

biweekly premium pay cap, all of the 

travel time is still considered to be 

compensable under 5 CFR 550.112(g)(2). 

Under these circumstances, therefore, 

the employee has been compensated 

fully under the law for all of the travel 

hours; the employee may not earn 

compensatory time off for any portion of 

such travel. 

Earning Compensatory Time Off for 

Travel 

Two unions and one individual 

recommended an employee should be 

able to earn compensatory time off 

when he or she travels while performing 

union representational duties. We are 

not adopting this recommendation. The 

term travel is defined at 5 CFR 550.1403 

to mean officially authorized travel—

i.e., travel for work purposes that is 

approved by an authorized agency 

official or otherwise authorized under 

established agency policies. The term 

‘‘travel for work purposes’’ is intended 

to mean travel for agency-related work 

purposes. The Federal Labor Relations 

Authority (FLRA) has held that the 

performance of representational duties 

does not involve the performance of 

work as used in the phrase ‘‘technology 

of performing work’’ under 5 U.S.C. 

7106(b)(1). See AFGE, Council 214, 

AFL–CIO, 31 FLRA 1259, 1261–62 

(1988). The FLRA has similarly held 

that the performance of representational 

activities does not involve ‘‘work’’

within the meaning of 5 U.S.C. 

7106(a)(2)(B). See AAFES, Dallas, 53 

FLRA at 24. Finally, the FLRA also has 

determined that, under 5 U.S.C. chapter 

43, job performance encompasses the 

performance of agency-assigned duties 

and does not include duties performed 

on behalf of a union. See United States 

Department of Health and Human 

Services., Soc. Sec. Admin., Office of 

Hearings & Appeals, 48 FLRA 357, 364 

(1993). Thus, employees who travel 

while performing union activities are 

not entitled to earn compensatory time 

off because they are traveling for the 

benefit of the union and not for agencyrelated work purposes. We have revised 

the definition of travel in § 550.1403 to 

clarify that time spent traveling in 

connection with union activities is not 

creditable for the purpose of earning 

compensatory time off for travel. 

One union and four individuals 

objected to an employee not being 

entitled to compensatory time off for 

travel when he or she is required to 

travel on a Federal holiday (or ‘‘in lieu 

of’’ holiday) during his or her basic 

(non-overtime) hours. Although most 

employees do not receive holiday 

premium pay for time spent traveling on 

a holiday (or an ‘‘in lieu of’’ holiday), 

an employee continues to be entitled to 

pay for the holiday in the same manner 

as if the travel were not required. Thus, 

an employee may not earn 

compensatory time off for travel during 

basic (non-overtime) holiday hours 

because the employee is entitled to his 

or her rate of basic pay for those hours. 

Compensatory time off for travel may be 

earned by an employee only for time 

spent in a travel status away from the 

employee’s official duty station when 

such time is not otherwise compensable. 

Some commenters requested 

clarification regarding an employee’s 

travel status as described in 

§ 550.1404(b). Under § 550.1404(b), 

creditable travel time for the purpose of 

earning compensatory time off for travel 

includes the time an employee actually 

spends traveling between the official 

duty station and a temporary duty 

station, or between two temporary duty 

stations, and the usual waiting time that 

precedes or interrupts such travel 

(subject to certain exclusions). One 

union recommended revising 

§ 550.1404(b)(1) to include situations 

where an employee may depart from his 

or her residence. We do not believe this 

is necessary, since travel to and from 


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Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Rules and Regulations 19095 

home is addressed in § 550.1404(c). One 

agency recommended clarifying 

compensatory time off for travel 

requires travel orders and it is not 

appropriate when travel is within an 

employee’s normal commuting area. We 

are not adopting these 

recommendations. Agencies are already 

required to process travel orders for 

officially authorized travel. In addition, 

§ 550.1404(a) already requires an 

employee to travel away from (i.e., 

outside the limits of) his or her official 

duty station in order to earn 

compensatory time off. 

Under § 550.1404(b)(1), time spent at 

a temporary duty station between arrival 

and departure is not time in a travel 

status. One individual recommended 

clarifying whether the arrival and 

departure are from the temporary duty 

worksite or lodging. We agree and have 

revised § 550.1404(b)(1) to clarify arrival 

and departure times. Time in a travel 

status ends when the employee arrives 

at the temporary duty worksite or his or 

her lodging in the temporary duty 

station, wherever the employee arrives 

first. Time in a travel status resumes 

when an employee departs from the 

temporary duty worksite or his or her 

lodging in the temporary duty station, 

from whichever the employee departs 

last. 

One agency recommended clarifying 

whether travel in connection with a 

permanent change of station (PCS) is 

considered time spent in a travel status, 

and one individual recommended that it 

should be. Although PCS travel is 

officially authorized travel, it is not 

travel between an official duty station 

and a temporary duty station or between 

two temporary duty stations. Therefore, 

it is not considered time in a travel 

status for the purpose of earning 

compensatory time off for travel. The 

law applies to travel ‘‘away from the 

official duty station of the employee,’’

not travel to a new official duty station. 

We believe that the regulation limiting 

application to temporary duty travel is 

consistent with the law and the intent 

of Congress. We have revised 

§ 550.1404(b)(1) to clarify that travel 

time in connection with an employee’s 

PCS is not time in a travel status for the 

purpose of earning compensatory time 

off. 

Six individuals requested clarification 

of how travel is calculated when an 

employee travels between different time 

zones. We have added a new paragraph 

(e) to § 550.1404 to provide clarification 

regarding the calculation of an 

employee’s travel time when the 

employee’s travel involves two or more 

time zones. Under 5 CFR 550.1404(b)(1), 

time in a travel status includes the time 

an employee ‘‘actually spends 

traveling’’ and the usual waiting time 

that precedes or interrupts the travel, 

subject to certain exclusions as specified 

in section 550.1404 of the regulations. 

When an employee’s travel involves two 

or more time zones, the time zone from 

the point of first departure must be used 

to determine how many hours (i.e., 

elapsed time) the employee actually 

spent in a travel status for the purpose 

of accruing compensatory time off. 

We received a number of comments 

on § 550.1404(b)(1) concerning the 

employing agency’s sole and exclusive 

discretion to determine what is 

creditable as ‘‘usual waiting time.’’ One 

agency, one union, and two individuals 

objected to providing agencies with this 

authority. The agency recommended 

establishing an upper and lower range 

of what is considered acceptable ‘‘usual 

waiting time.’’ The union recommended 

including examples of ‘‘usual waiting 

times.’’ The two individuals suggested 

defining ‘‘usual waiting time’’ to 

include the time it takes to get service 

at ticket counters, security, baggage 

claim, and transportation counters or 

using waiting times determined by the 

airlines or travel agencies. One 

individual commented that there may 

be different determinations of ‘‘usual 

waiting time’’ within an agency. We are 

not adopting any of these 

recommendations. The concept of 

‘‘usual waiting time’’ is currently used 

in determining overtime hours of work 

under title 5 and the FLSA, and 

agencies are knowledgeable and 

experienced in applying this concept. In 

addition, we believe it is appropriate to 

give agencies the flexibility to make this 

determination. 

Several commenters recommended 

removing § 550.1404(b)(2), which states 

that bona fide meal periods during 

actual travel time or waiting time are 

not creditable as time spent in a travel 

status. An agency stated it was absurd 

to subtract bona fide meal periods from 

creditable travel time but allow time 

periods for making telephone calls, 

dozing, chatting, wandering through 

terminals, etc., to be considered 

creditable travel time. Another agency 

commented that the results of making 

distinctions between employees who 

choose to eat at a terminal restaurant 

and employees who choose to eat while 

walking to or waiting at the gate are so 

anomalous that consistent application of 

the regulation cannot be expected. OPM 

included this limitation in the interim 

regulations because it is consistent with 

the requirement to subtract bona fide 

meal periods from an employee’s 

creditable overtime hours of work under 

5 CFR 550.112(m) and 551.432(c). 

However, we agree that agencies should 

not try to make distinctions in the 

employee’s activities during waiting 

time. Further, we agree it is not efficient 

or cost-effective to try to track 

employees’ bona fide meal periods 

during travel time or waiting time solely 

for the purpose of crediting 

compensatory time off for travel, and we 

have removed § 550.1404(b)(2) 

accordingly. 

Many commenters requested 

clarification of, or objected to, 

§ 550.1404(b)(3), which states that 

extended waiting time is not creditable 

as time in a travel status. Under 

§ 550.1404(b)(3), if an employee 

experiences an extended (i.e., not usual) 

waiting time between the periods of 

actual travel during which the employee 

is free to rest, sleep, or otherwise use the 

time for his or her own purposes, the 

extended waiting time is not creditable 

as time in a travel status. Three agencies 

recommended providing guidance on a 

range of acceptable hours for ‘‘extended 

waiting time,’’ how much discretion an 

agency has in determining extended 

waiting times, or where to draw the line 

between ‘‘usual’’ and ‘‘extended’’

waiting times. Another agency 

recommended permitting an employee 

to earn compensatory time off for 

situations beyond the control of the 

employee, though not a large amount of 

compensatory time off. Three agencies 

and a union recommended revising 

§ 550.1404(b)(3) to limit extended 

waiting time to any period during which 

an employee must obtain overnight 

lodging. We are not adopting any of 

these recommendations. Under 

§ 550.1404(b)(1), determinations 

regarding what is creditable as usual 

waiting time are within the sole and 

exclusive discretion of the agency. The 

concept of excluding extended waiting 

time is currently used in determining 

creditable overtime hours of work under 

title 5 and the FLSA, and agencies are 

experienced in applying this limitation. 

Agencies should not establish a policy 

to credit compensatory time off for 

travel beyond the usual waiting time 

applied under title 5 and the FLSA. 

We received several comments about 

subtracting commuting time from 

creditable travel time under 

§ 550.1404(c)(1) and § 550.1404(d). 

Under § 550.1404(c)(1), an agency must 

deduct the hours the employee would 

have spent in normal home-to-work or 

work-to-home commuting from travel 

between the employee’s home and a 

temporary duty station. Under 

§ 550.1404(d), if a transportation 

terminal (such as an airport) is located 

within the limits of the employee’s 

official duty station, the employee’s 


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19096 Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Rules and Regulations 

travel time to and from the airport 

(outside regular working hours) is 

considered to be equivalent to 

commuting time and is not creditable 

time in a travel status. If the airport is 

located outside the limits of the 

employee’s official duty station, the 

travel time to and from the airport 

(outside regular working hours) is 

creditable time in a travel status, but it 

is subject to an offset for the time the 

employee would have spent in normal 

home-to-work or work-to-home 

commuting. 

Several commenters objected to 

deducting normal commuting time on 

non-workdays as required by 

§ 550.1404(d). An agency recommended 

deleting § 550.1404(d) entirely. Another 

agency and a union recommended 

revising § 550.1404(d) to make travel to 

and from a transportation terminal 

within an employee’s official duty 

station official travel time rather than 

equivalent commuting time. The union 

also objected to subtracting an 

employee’s normal commuting time 

under § 550.1404(c)(1). One individual 

recommended making an exception for 

employees who reside outside the local 

commuting area or to limit the amount 

of normal commuting time the agency 

deducts for such employees. We are not 

adopting any of these recommendations. 

The requirement in OPM’s regulations 

in § 550.1404(c) and (d) regarding the 

deduction of normal commuting time is 

consistent with the requirement to 

deduct normal commuting time from an 

employee’s travel time in determining 

creditable overtime hours of work under 

5 CFR 550.112(j)(2) and 5 CFR 

551.422(b). 

An individual expressed concern 

regarding how § 550.1404(c) might be 

applied by his agency. In particular, he 

was concerned his agency might define 

‘‘official duty station’’ to encompass an 

unreasonably large area so that an 

employee could not be credited for 

travel from home to a temporary duty 

station. It is true that, under the 

regulations, travel to a temporary duty 

station within an employee’s official 

duty station is not creditable for the 

purpose of accruing compensatory time 

off for travel. However, as explained in 

an earlier paragraph regarding 

comments on the definition of ‘‘official 

duty station,’’ an agency is required to 

use the same geographic area that is 

used for determining whether travel 

time is compensable under the overtime 

pay provisions. (See 5 CFR 550.112(j) 

and 551.422(d).) Thus, agency 

discretion is limited. We have no 

information indicating that the agencies 

have defined ‘‘official duty station’’ for 

overtime pay purposes in an 

unreasonable way. Therefore, we 

decline to make any change in the 

regulations in this regard. 

In the case of an employee who is 

offered one mode of transportation and 

who is permitted to use an alternative 

mode of transportation, or who travels 

at a time or by a route other than that 

selected by the agency, the agency must 

determine the estimated amount of time 

in a travel status the employee would 

have had if the employee had used the 

mode of transportation offered by the 

agency or traveled at the time or by the 

route selected by the agency under 

§ 550.1404(c)(2). As recommended by an 

agency, we made a minor editorial 

correction to § 550.1404(c)(2) and 

replaced ‘‘traveled at the time and by 

the route selected by the agency’’ with 

‘‘traveled at the time or by the route 

selected by the agency’’ [emphasis 

added]. 

One agency and an individual asked 

if compensatory time off for travel may 

be authorized when the employee 

returns a day earlier than planned. In 

such cases, the agency must credit an 

employee with the lesser of the 

estimated time in travel status the 

employee would have had if the 

employee had traveled on the day 

selected by the agency, or the 

employee’s actual travel hours on a day 

other than that selected by the agency. 

One individual commented an 

alternative mode of transportation may 

save the agency money and 

recommended imposing a daily limit on 

the amount of compensatory time off for 

travel rather than crediting the lesser 

travel time. We do not agree. The cost 

of travel may influence how an agency 

schedules an employee’s travel, but it 

does not have any impact on an 

employee’s entitlement to compensatory 

time off for travel. 

Another individual asked if crediting 

the lesser travel time when an employee 

uses an alternative mode of 

transportation discriminates against 

employees with documented special 

needs and/or disabilities, such as a fear 

of flying, by not allowing the employee 

to earn compensatory time off for travel 

for the extra time spent traveling using 

the alternative mode of transportation. 

The regulatory requirement in 

§ 550.1404(c)(2) regarding how to credit 

time when an employee uses an 

alternative mode of transportation, or 

travels at another time or by a route 

other than that selected by the agency, 

is consistent with the same requirement 

in determining creditable overtime 

hours of work under 5 CFR 551.422(c). 

In addition, an alternative mode of 

transportation or alternative route or 

time period may influence an agency’s 

authorization of official travel but does 

not have an impact on an employee’s 

entitlement to compensatory time off for 

travel. Therefore we have not changed 

the regulation. 

Two agencies recommended 

clarifying whether an agency may 

change an employee’s work schedule for 

travel purposes. An agency may not 

adjust the regularly scheduled 

administrative workweek that normally 

applies to an employee (part-time or 

full-time) solely for the purpose of 

including planned travel time that 

would not otherwise be considered 

compensable hours of work. One 

individual recommended clarifying 

whether time spent traveling would be 

creditable as credit hours or 

compensatory time off for travel for an 

employee who is authorized to earn 

credit hours under an alternative work 

schedule. Credit hours are hours an 

employee elects to work, with 

supervisory approval, in excess of the 

employee’s basic work requirement 

under a flexible work schedule. Under 

certain conditions, an agency may 

permit an employee to earn credit hours 

by performing productive and essential 

work while in a travel status. See OPM’s 

Handbook on Alternative Work 

Schedules at http://www.opm.gov/oca/ 

worksch/HTML/Cred_hrs.htm#travel for 

the conditions that must be met. If those 

conditions are met and the employee 

does earn credit hours for travel, the 

time spent traveling would be 

compensable and the employee would 

not be eligible to earn compensatory 

time off for travel. If the conditions are 

not met, the employee would be eligible 

to earn compensatory time off for travel. 

One agency, one union, and one 

individual expressed concerns about the 

provision in § 550.1405(a) which allows 

the employing agency to credit an 

employee’s earned compensatory time 

off in increments of one-tenth of an hour 

(6 minutes) or one-quarter of an hour 

(15 minutes). The agency recommended 

mandating the use of either 6-minute or 

15-minute increments, rather than 

providing the choice, for payroll 

consistency. The union recommended 

permitting agencies to continue their 

established minimum charges to leave 

rather than modifying the payroll 

systems. The requirement to credit and 

use compensatory time off for travel in 

increments of 6 or 15 minutes is 

consistent with OPM’s standardized 

policy for charging annual and sick 

leave in the same increments. In 

addition, agency time and attendance 

and payroll processing systems have 

already been modified to accommodate 

this change as a result of the interim 


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Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Rules and Regulations 19097 

regulations issued in January 2005 on 

compensatory time off for travel. 

Under § 550.1405(b), an employee 

must comply with his or her agency’s 

procedures for requesting credit of the 

employee’s compensatory time off and 

file such requests within the time period 

specified by the agency. An agency 

recommended adding a requirement 

that an employee’s request for credit of 

compensatory time off for travel may be 

denied if the request is not filed within 

the time periods established by agency 

policy or guidelines. We agree and have 

added this requirement to § 550.1405(b). 

One union recommended that an agency 

should approve a request to earn 

compensatory time off for travel at the 

same time the travel authorization is 

issued. Another agency recommended 

setting a specific time period within 

which employees must submit requests 

for credit of compensatory time off for 

travel. We are not adopting these 

recommendations. We do not believe it 

is necessary to limit an agency’s 

discretionary authority to prescribe such 

procedures and time limitations in its 

internal policies. 

An agency recommended 

modification of OPM Form 71, Request 

for Leave or Approved Absence, or 

develop a new form, for employee 

requests to earn or use compensatory 

time off for travel. We do not believe it 

is necessary or desirable to mandate the 

use of a Governmentwide form for this 

purpose. However, an agency may 

choose to develop a form as part of its 

internal policies and procedures for 

requesting and using compensatory time 

off for travel. 

Three agencies recommended 

establishing a limit on the number of 

hours of compensatory time off for 

travel an employee may earn. 

Establishing a cap on the amount of 

compensatory time off for travel an 

employee may earn would require a 

legislative change. A union and an 

individual recommended not limiting 

compensatory time off to domestic 

travel. These regulations are not limited 

to domestic travel; OPM’s regulations 

apply to both domestic and foreign 

travel. 

Using Compensatory Time Off for 

Travel 

Under § 550.1406(a), an employee 

must request permission from his or her 

supervisor to schedule the use of his or 

her accrued compensatory time off in 

accordance with agency-established 

policies and procedures. One agency 

recommended requiring agencies to 

charge compensatory time off for travel 

on a first-in, first-out basis. We agree 

and have revised § 550.1406(b) to 

require agencies to charge compensatory 

time off in the chronological order in 

which it was earned, with compensatory 

time off earned first being charged first. 

One individual recommended 

compensatory time off for travel should 

be redeemable at the rate of 1.5 times 

the number of hours spent traveling. No 

legal authority exists to permit an 

employee to be absent from his or her 

scheduled tour of duty on the basis of 

1.5 hours for each hour of creditable 

travel time. In addition, the hour-forhour rule in the interim regulation is 

consistent with the policy for earning 

and using compensatory time off in lieu 

of overtime pay under 5 CFR 550.114 

and 551.531. 

Under § 550.1406(b), earned 

compensatory time off may be used 

when an employee is granted time off 

from his or her scheduled tour of duty 

for leave purposes. One agency and two 

individuals requested clarification of 

how the use of earned compensatory 

time off for travel relates to ‘‘use-orlose’’ annual leave. (‘‘Use or lose’’

annual leave is accrued annual leave in 

excess of the maximum leave ceilings 

(i.e., 30, 45, or 90 days) that is subject 

to forfeiture at the end of the leave year.) 

Section 6304(d) of title 5, United States 

Code, prescribes the conditions under 

which an employee’s forfeited annual 

leave may be restored to an employee. 

There is no legal authority to restore an 

employee’s forfeited annual leave 

because the employee elected to use 

earned compensatory time off for travel 

instead of using his or her excess annual 

leave. 

Forfeiting Unused Compensatory Time 

Off for Travel 

We received several comments on 

§ 550.1407(a)(1), which requires 

employees to forfeit unused 

compensatory time off if it is not used 

by the end of the 26th pay period after 

the pay period during which it was 

credited, except as provided in 

§ 550.1407(a)(2) (e.g., when an employee 

separates or is placed in a leave without 

pay status to perform service in the 

uniformed services with restoration 

rights or who has suffered an on-the-job 

injury with entitlement to injury 

compensation under 5 U.S.C. chapter 81 

and who later returns to service.). Two 

agencies recommended clarifying 

whether the forfeiture of unused 

compensatory time off occurs within 26 

pay periods after it has been earned or 

credited to their payroll account. We 

agree and have revised § 550.1407(a)(1) 

to clarify that an employee must use his 

or her accrued compensatory time off 

within 26 pay periods after it is earned 

or forfeit such compensatory time off. 

One agency recommended giving 

agencies discretionary authority to 

provide a time limit for an employee to 

use compensatory time off for travel in 

the same way agencies are allowed to 

provide time limitations for the use of 

other compensatory time off. Another 

agency recommended establishing a 

specific date for using earned 

compensatory time off for travel. A 

union recommended an employee be 

allowed to use his or her earned 

compensatory time off for travel from 

the date earned until the end of the next 

leave year. Two individuals expressed 

concerns that agencies would not allow 

their employees to use their earned 

compensatory time for travel within 26 

pay periods. One union and an 

individual recommended establishing a 

longer period of time, such as 52 pay 

periods, before requiring forfeiture of 

compensatory time off for travel. Several 

commenters recommended providing 

agencies discretionary authority to 

extend the time limit for using earned 

compensatory time off for travel in 

emergency situations or when 

employees are required to complete 

mission-critical assignments. 

While the use of compensatory time 

off for travel is subject to agency work 

demands, we believe 26 pay periods is 

a sufficient amount of time for most 

employees to use their earned 

compensatory time off. However, we 

believe exceptions may be warranted in 

exceptional situations, for example, 

during emergency situations, to 

complete mission-critical assignments, 

or when employees are deployed to 

perform work directly related to a 

military operation. Therefore, we have 

added a new paragraph (e) to § 550.1407 

to permit an authorized agency official, 

at his or her sole and exclusive 

discretion, to extend the time limit for 

using earned compensatory time off for 

travel if an employee’s failure to use the 

compensatory time off within 26 pay 

periods is due to an exigency of the 

service beyond the employee’s control. 

Section 550.1407(a)(2) extends the 

period for using earned compensatory 

time off for travel for an employee who 

separates from Federal service or is 

placed in a leave without pay status to 

perform service in the uniformed 

services with restoration rights or who 

has suffered an on-the-job injury with 

entitlement to injury compensation 

under 5 U.S.C. chapter 81 and who later 

returns to service in the same (or 

successor) agency. In these 

circumstances, the employee must use 

his or her earned compensatory time off 

by the end of the 26th pay period 

following the pay period in which the 

employee returns to duty. One agency 


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19098 Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Rules and Regulations 

objected to allowing the 26 pay periods 

to start over from the beginning upon an 

employee’s return to duty. We believe it 

is reasonable to provide an employee, 

under these circumstances, a full 26 pay 

periods following his or her return to 

duty within which to use earned 

compensatory time off for travel. 

An agency recommended allowing 

agencies to consider unused 

compensatory time off when 

determining an employee’s separation 

date. We are not adopting this 

recommendation. An agency has the 

authority under § 550.1406(a) to 

approve or disapprove an employee’s 

request to use his or her accrued 

compensatory time off in accordance 

with agency-established policies and 

procedures. 

Two individuals objected to the 

provision in § 550.1408 which prohibits 

an individual from receiving payment 

under any circumstances for any unused 

compensatory time off for travel that he 

or she earned. However, the law 

explicitly prohibits payment for unused 

compensatory time off. (See 5 U.S.C. 

5550b(b).) 

E.O. 12866, Regulatory Review 

The Office of Management and Budget 

has reviewed this rule in accordance 

with E.O. 12866. 

Regulatory Flexibility Act 

I certify that these regulations will not 

have a significant economic impact on 

a substantial number of small entities 

because they will apply only to Federal 

agencies and employees. 

List of Subjects in 5 CFR Part 550 

Administrative practice and 

procedure, Claims, Government 

employees, Wages. 

Office of Personnel Management. 

Linda M. Springer, 

Director. 

■ Accordingly, the interim rule 

amending 5 CFR part 550, which was 

published at 70 FR 3855 on January 27, 

2005, is adopted as final with the 

following changes: 

PART 550—PAY ADMINISTRATION 

(GENERAL) 

■ 1. The authority citation for part 550 

continues to read as follows: 

Authority: 5 U.S.C. 5304 note, 5305 note, 

5541(2)(iv), 5545a(h)(2)(B) and (i), 5547(b) 

and (c), 5548, and 6101(c); sections 407 and 

2316, Pub. L. 105–277, 112 Stat. 2681–101 

and 2681–828 (5 U.S.C. 5545a); E.O. 12748, 

3 CFR, 1992 Comp., p. 316. 

Subpart N—Compensatory Time Off 

for Travel 

■ 2. Revise the first sentence of 

§ 550.1401 to read as follows: 

§ 550.1401 Purpose. 

This subpart contains OPM 

regulations implementing 5 U.S.C. 

5550b, which establishes a separate type 

of compensatory time off. * * * 

■ 3. In § 550.1403, add the definitions of 

accrued compensatory time off and 

authorized agency official and revise the 

definition of travel to read as follows: 

§ 550.1403 Definitions. 

* * * * * 

Accrued compensatory time off means 

the compensatory time off earned by an 

employee that has not been used or 

forfeited. 

Authorized agency official means the 

head of the agency or an official who is 

authorized to act for the head of the 

agency in the matter concerned. 

* * * * * 

Travel means officially authorized 

travel—i.e., travel for work purposes 

that is approved by an authorized 

agency official or otherwise authorized 

under established agency policies. Time 

spent traveling in connection with 

union activities is excluded. 

* * * * * 

■ 4. In § 550.1404, revise paragraph 

(b)(1), remove paragraph (b)(2), 

redesignate paragraph (b)(3) as 

paragraph (b)(2), revise the first 

sentence of paragraph (c)(2), and add 

paragraph (e) to read as follows: 

§ 550.1404 Creditable travel time. 

* * * * * 

(b)(1) Travel status. Time in a travel 

status includes the time an employee 

actually spends traveling between the 

official duty station and a temporary 

duty station, or between two temporary 

duty stations, and the usual waiting 

time that precedes or interrupts such 

travel, subject to the exclusion specified 

in paragraph (b)(2) of this section and 

the requirements in paragraph (c), (d) 

and (e) of this section. Time spent at a 

temporary duty station between arrival 

and departure is not time in a travel 

status. Time in a travel status ends 

when the employee arrives at the 

temporary duty worksite or his or her 

lodging in the temporary duty station, 

wherever the employee arrives first. 

Time in a travel status resumes when an 

employee departs from the temporary 

duty worksite or his or her lodging in 

the temporary duty station, from 

whichever the employee departs last. 

Travel time in connection with an 

employee’s permanent change of station 

is not time in a travel status. 

Determinations regarding what is 

creditable as ‘‘usual waiting time’’ are 

within the sole and exclusive discretion 

of the employing agency. 

* * * * * 

(c) * * * 

(2) In the case of an employee who is 

offered one mode of transportation and 

who is permitted to use an alternative 

mode of transportation, or who travels 

at a time or by a route other than that 

selected by the agency, the agency must 

determine the estimated amount of time 

in a travel status the employee would 

have had if the employee had used the 

mode of transportation offered by the 

agency or traveled at the time or by the 

route selected by the agency. * * * 

* * * * * 

(e) Travel involving two or more time 

zones. When an employee’s travel 

involves two or more time zones, the 

time zone from the point of first 

departure must be used to determine 

how many hours the employee actually 

spent in a travel status for the purpose 

of accruing compensatory time off. 

■ 5. In § 550.1405, paragraph (b) is 

revised to read as follows: 

§ 550.1405 Crediting compensatory time 

off. 

* * * * * 

(b) An employee must comply with 

his or her agency’s procedures for 

requesting credit of compensatory time 

off under this section. Employees must 

file such requests within the time period 

required by the agency. An employee’s 

request for credit of compensatory time 

off for travel may be denied if the 

request is not filed within the time 

period required by the agency. 

■ 6. In § 550.1406, revise the section 

heading and paragraph (b) to read as 

follows: 

§ 550.1406 Use of accrued compensatory 

time off. 

* * * * * 

(b) Compensatory time off may be 

used when the employee is granted time 

off from his or her scheduled tour of 

duty established for leave purposes. An 

employee must use earned 

compensatory time off under this 

subpart in increments of one-tenth of an 

hour (6 minutes) or one-quarter of an 

hour (15 minutes). Agencies must 

charge compensatory time off in the 

chronological order in which it was 

earned, with compensatory time off 

earned first being charged first. 

■ 7. In § 550.1407, revise paragraph 

(a)(1) and add a new paragraph (e) to 

read as follows: 


cprice-sewell on PRODPC61 with RULES
Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Rules and Regulations 19099 

§ 550.1407 Forfeiture of unused 

compensatory time off. 

(a) After 26 pay periods. (1) Except as 

provided in paragraphs (a)(2) and (e) of 

this section, an employee must use 

accrued compensatory time off by the 

end of the 26th pay period after the pay 

period during which it was earned. If an 

employee fails to use the compensatory 

time off within 26 pay periods after it 

was earned, he or she must forfeit such 

compensatory time off. 

* * * * * 

(e) Exception due to an exigency. If an 

employee fails to use his or her 

compensatory time earned under 

§ 550.1404(a) by the end of the 26th pay 

period after the pay period during 

which it was earned due to an exigency 

of the service beyond the employee’s 

control, an authorized agency official, at 

his or her sole and exclusive discretion, 

may extend the time limit for using such 

compensatory time off for travel for up 

to an additional 26 pay periods. 

[FR Doc. E7–7266 Filed 4–16–07; 8:45 am] 

BILLING CODE 6325–39–P 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Part 890 

RIN 3206–AI62 

Waiver of Requirements for Continued 

Coverage During Retirement 

AGENCY: Office of Personnel 

Management. 

ACTION: Final Rule. 

SUMMARY: Under current Federal 

Employees Health Benefits (FEHB) 

Program regulations, the Office of 

Personnel Management (OPM) may 

waive the eligibility requirements for 

health benefits coverage as an annuitant 

for an individual when, in its sole 

discretion, it determines that it would 

be against equity and good conscience 

not to allow a person to be enrolled in 

the FEHB Program as an annuitant. The 

regulations state that an individual’s 

failure to satisfy eligibility requirements 

must be due to exceptional 

circumstances. They also list specific 

situations where a waiver will not be 

granted by OPM such as when an 

individual’s retirement is based on a 

disability or an involuntary separation, 

or when an individual was misadvised 

by his/her employing office. This final 

regulation eliminates these specific 

situations from the regulation. This final 

regulation provides OPM with more 

flexibility when granting waivers. 

EFFECTIVE DATE: May 17, 2007. 

ADDRESSES: This document is available 

for viewing at the U.S. Office of 

Personnel Management, 1900 E Street, 

NW., Washington DC 20415. Send all 

comments to Michael Kaszynski, 

Insurance Policy, U.S. Office of 

Personnel Management, 1900 E Street, 

NW., Room 3415, Washington DC 

20415. 

FOR FURTHER INFORMATION CONTACT: 

Michael Kaszynski, Policy Analyst, at 

202–606–0004. 

SUPPLEMENTARY INFORMATION: Under 5 

U.S.C. 8905(b), OPM may waive the 

eligibility requirements for health 

benefits coverage as an annuitant for an 

individual when, in its sole discretion, 

it determines that it would be against 

equity and good conscience not to allow 

a person to be enrolled in the FEHB 

Program as an annuitant. Under 5 CFR 

890.108, an individual’s failure to 

satisfy eligibility requirements must be 

due to exceptional circumstances. An 

individual requesting a waiver must 

provide OPM with evidence that (1) the 

individual intended to have FEHB 

coverage as an annuitant (retiree); (2) 

the circumstances that prevented the 

individual from meeting the 

requirements of 5 U.S.C. 8905(b) were 

beyond the individual’s control; and (3) 

the individual acted reasonably to 

protect his or her right to continue 

coverage into retirement. 

Section 890.108 lists specific 

situations where a waiver will not be 

granted by OPM such as when an 

individual’s retirement is based on a 

disability or an involuntary separation, 

or an individual was misadvised by his/ 

her employing office. This final 

regulation eliminates these specific 

situations from 5 CFR 890.108 to 

provide more flexibility to the waiver 

process. 

On August 7, 2006, a proposed 

regulation was published in the Federal 

Register at 71 FR 44592. We received no 

comments on the proposed rule. We 

have made no changes to this rule from 

its proposed version. 

Collection of Information Requirement 

This final rule does not impose 

information collection and 

recordkeeping requirements that meet 

the definition of the Paperwork 

Reduction Act of 1995’s term 

‘‘collection of information’’ which 

means obtaining, causing to be obtained, 

soliciting, or requiring the disclosure to 

third parties or the public, of facts or 

opinions by or for an agency, regardless 

of form or format, calling for either 

answers to identical questions posed to, 

or identical reporting or recordkeeping 

requirements imposed on ten or more 

persons, other than agencies, 

instrumentalities, or employees of the 

United States; or answers to questions 

posed to agencies, instrumentalities, or 

employees of the United States which 

are to be used for general statistical 

purposes. Consequently, it need not be 

reviewed by the Office of Management 

and Budget under the authority of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.). 

Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

requires agencies to analyze options for 

regulatory relief of small businesses. For 

purposes of the RFA, small entities 

include small businesses, nonprofit 

organizations, and government agencies 

with revenues of $11.5 million or less in 

any one year. This final rulemaking 

affects FEHB Program health insurance 

eligibility requirements which do not 

impact the dollar threshold. Therefore, 

I certify that this final regulation will 

not have a significant economic impact 

on a substantial number of small 

entities. 

Regulatory Impact Analysis 

We have examined the impact of this 

final rule as required by Executive 

Order 12866 (September 1993, 

Regulatory Planning and Review), the 

RFA (September 16, 1980, Pub. L. 96–

354), section 1102(b) of the Social 

Security Act, the Unfunded Mandates 

Reform Act of 1995, (Pub. L. 104–4), and 

Executive Order 13132. Executive Order 

12866 (as amended by Executive Order 

13258, which merely assigns 

responsibility of duties) directs agencies 

to assess all costs and benefits of 

available regulatory alternatives and, if 

regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety effects, distributive impacts, 

and equity). A regulatory impact 

analysis must be prepared for major 

rules with economically significant 

effects ($100 million or more in any one 

year). This rule is not considered a 

major rule, as defined in section 804(2) 

of title 5, United States Code, because 

we estimate its impact will only affect 

federal government employment offices. 

Any resulting economic impact would 

not be expected to exceed the dollar 

threshold. 

Executive Order 12866, Regulatory 

Review 

This final rule has been reviewed by 

the Office of Management and Budget in 

accordance with Executive Order 12866. 


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